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The Decline of the Lawyer-Politician Buffalo Law Review Volume 65 Number 4 Article 1 8-1-2017 The Decline of the Lawyer-Politician Nick Robinson Yale Law School Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Law and Politics Commons, and the Legal Profession Commons Recommended Citation Nick Robinson, The Decline of the Lawyer-Politician, 65 Buff. L. Rev. 657 (2017). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol65/iss4/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW VOLUME 65 AUGUST 2017 NUMBER 4 The Decline of the Lawyer-Politician NICK ROBINSON† INTRODUCTION In Democracy in America, Alexis De Tocqueville famously noted, “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”1 This observation about the close interplay of the judicial and political branches in the United States is almost certainly an over-generalization,2 but it also captures a central feature of the U.S. system of government † Robina Fellow at Yale Law School, Lecturer in Political Science at Yale University, and affiliated Fellow at Harvard Law School’s Center on the Legal Profession. I would like to thank David Wilkins, Vic Khanna, Marc Galanter, Rick Abel, Bob Kagan, Guido Calabresi, Susan Rose-Ackerman, Lawrence Lessig, Richard Abel, David Mayhew, Heather Gerken, John Witt, Shauna Shames, Alicia Bannon, Adam Lioz, Ben Schneer, William Hubbard, Robert Gordon, Gordon Silverstein, Maya Sen, Nick Carnes, Douglas McDonald, Bryon Fong, Derek Davis, and participants of a workshop at Harvard Law School’s Center on the Legal Profession for their feedback on this Article. 1. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 280 (Phillips Bradley ed., 1945). 2. JEB BARNES & THOMAS F. BURKE, HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION 1 (2015) (citing to literature arguing that de Tocqueville may have been wrong that all political disputes do not eventually become judicial ones in the U.S., but that the observation does explain a significant portion of U.S. politics); Mark A. Graber, Resolving Political Questions into Judicial Questions: Tocqueville’s Thesis Revisited, 21 CONST. COMMENT. 485, 487 (2004) (arguing that most national political questions that existed when de Tocqueville was writing during the Jacksonian era were not, in fact, resolved into judicial questions). 657 658 BUFFALO LAW REVIEW [Vol. 65 and is frequently repeated by scholars.3 What is less often emphasized is that not only do political issues in the United States often go from being debated in legislatures to argued in the courts, but that those who do the debating and arguing have frequently moved in their careers between these bodies as well.4 Or, at the very least, they come from the same professional background: they are lawyers. Historically, lawyers have not only monopolized positions in the court system, but have also dominated the political leadership of the United States. Since independence, more than half of all presidents, vicepresidents, and members of Congress have come from a law background.5 At the state level, a similar, if less pronounced, pattern has been repeated.6 Yet, while lawyers’ ubiquity in politics is relatively common knowledge, there 3. See, e.g., BARNHOES & BURKE, supra note 2, at 1. 4. De Tocqueville himself is an exception to this dearth of attention. In Democracy in America, he emphasized the lawyers’ prevalence in the U.S. political system and described its effect on U.S. democracy. DE TOCQUEVILLE, supra note 1, at 280. 5. While the occupational backgrounds of all presidents and vicepresidents were coded for this Article, the conclusion that over half of all members of Congress have come from a law background was calculated through a combination of counting and sampling. According to compiled data from CQ Press from 1945 to 2016, 46% of those that have served in Congress have been lawyers, or 1,963 of the 4,275 members of Congress during this period. CQ Press, Congress Collection, http://library.cqpress.com/congress / (last visited June 8, 2017) [hereinafter CQ Press]. From the early 19th century to 1945, over 60%, and frequently over 70%, of the members of Congress sampled for this study were lawyers. See infra Section II.A. This combination of sampling and counting from different periods indicates that well over half of all members of Congress have been lawyers. 6. HEINZ EULAU & JOHN D. SPRAGUE, LAWYERS IN POLITICS: A STUDY OF PROFESSIONAL CONVERGENCE 11–12 (1964) (recounting studies showing that in the late 19th and early to mid-20th century, lawyers were prevalent as governors and state legislators, but not as prevalent as lawyers as U.S. presidents or members of Congress); Richard L. Engstrom & Patrick F. O’Connor, Lawyer- Legislators and Support for State Legislative Reform, 42 J. POL. 207, 267 (1980) (noting that in 1980, lawyer-legislators comprised from a quarter to over half of state legislatures whereas the U.S. Congress is generally comprised of over half lawyer members). 2017] DECLINE OF THE LAWYER-POLITICIAN 659 has been almost no study of how lawyers’ prevalence in politics has changed over time, why these changes might have occurred, or whether a shift in the prevalence of lawyers—or the types of lawyers—in politics even matters.7 This Article helps address these gaps. It examines a unique data set of the occupational background of members of the U.S. Congress that spans more than two hundred years from the 1st Congress to the 114th Congress. This data shows that the proportion of lawyers in Congress has not been static. Instead, after a notable increase in the number of lawyers in the U.S. Congress after Independence, there has been a slow, but steady, decline in their numbers. In the mid-nineteenth century, almost 80% of members of Congress were lawyers.8 By the 1960s, this dropped to under 60%, and in the 114th Congress, the number of lawyer-members in Congress was slightly under 40%.9 I argue this decline has been caused in large part by new types of specialization both in politics and in law. In politics, lawyers now face new competition from what this Article refers to as a “specialized political class” comprised of political aides and members of civil society.10 Those from this political class have many, if not more, of the advantages that lawyers historically have had in politics from flexible careers 7. While scholars have largely ignored the effect of the changing prevalence of lawyers in politics, they have attempted to assess the effect of their ubiquity. For example, there have been several studies that have attempted to determine whether the presence of lawyers has had an effect on legislative outcomes. See sources cited infra note 195. 8. See infra Section II.A, Table 2. 9. See infra Section II.A, Table 2. 10. The term “specialized political class” is not common, but others have used variants, particularly in other countries. See, e.g., TREVOR COOK, WHITLAM’S GRANDCHILDREN: WHAT THE CLASS OF 2007 TELLS US ABOUT THE ALP 10 (Aug. 2009), http://trevorcook.typepad.com/files/rudds-class-of-2007.pdf (describing the rise of a “professional political class” in Australia when noting the decline of lawyers in elected office there and the rise of those who have made politics a vocation). 660 BUFFALO LAW REVIEW [Vol. 65 that frequently incentivize running for office to readymade networks of campaign contributors.11 Meanwhile, in law, lawyers find themselves in an increasingly professionalized and commercialized work environment that prizes specializations like corporate law that seem to have less overlap or synergy with a career in politics.12 But what consequences does the decline of lawyers in Congress, and politics more generally, actually have? Certainly, it is significant for the legal profession itself, likely decreasing the number of politically ambitious young people who enter law and potentially creating a more inward looking and less public-spirited profession.13 It may also affect the diversity of Congress—for example, the relatively low proportion of women in the U.S. Congress compared to other advanced democracies may be partly caused by law traditionally being a gatekeeping occupation for a political career.14 In fact, evidence is presented in this Article that women members of Congress have traditionally been less likely to be lawyers, perhaps because women, in general, have faced so many barriers in the legal profession.15 11. See infra Section IV.A. 12. See infra Section IV.B. 13. In recent years, there has been a widespread view among many scholars that law has become more of a business and less of a public-spirited profession. This perception has several potential causes, including increased specialization that reduces the cohesion of the bar and increases the focus of law firms on profits. See, e.g., Deborah L. Rhode, The Professionalism Problem, 39 WM. & MARY L. REV. 283, 297 (1998). 14. While the hurdles women have faced in the legal profession may contribute to their relatively low representation in U.S. politics as shown in Section II.B, this is likely not the primary reason for their low representation. For example, there is some evidence that it may be caused by the structure of the U.S. electoral system. Steven Hill, Why Does the US Still Have So Few Women in Office?, THE NATION (Mar.
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